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Supreme Court of Florida.


No. SC17-1778

Decided: February 28, 2018

Gustavo J. Garcia-Montes, Miami, Florida, for Appellant Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Melissa J. Roca and Brian H. Zack, Assistant Attorneys General, Miami, Florida, for Appellee

We have for review Pablo San Martin's appeal of the circuit court's order denying San Martin's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

San Martin's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and our decision on remand in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017). After this Court decided Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513 (2017), San Martin responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing San Martin's response to the order to show cause, as well as the State's arguments in reply, we conclude that San Martin is not entitled to relief. San Martin was sentenced to death following a jury's recommendation for death by a vote of nine to three. San Martin v. State, 705 So. 2d 1337, 1342 (Fla. 1997). San Martin's sentence of death became final in 1998. San Martin v. Florida, 525 U.S. 841 (1998). Thus, Hurst does not apply retroactively to San Martin's sentence of death. See Hitchcock, 226 So. 3d at 217. Accordingly, we affirm the denial of San Martin's motion.

The Court having carefully considered all arguments raised by San Martin, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

I concur in result because I recognize that this Court's opinion in Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.


LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur. PARIENTE, J., concurs in result with an opinion. LEWIS and CANADY, JJ., concur in result.

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